Citation: SINANOVIC v R [2000] NSWCCA 397
Court: New South Wales Court of Criminal Appeal
Date: 11 December 2000
Judge(s): Wood CJ at CL, Hulme J, Greg James J
Background
The appellant was convicted in the District Court on 13 January 1999 of dishonestly obtaining a diamond ring by deception, contrary to section 178BA of the Crimes Act 1900 (NSW). The charge arose from events on 11 December 1995, when the appellant took a $27,000 diamond ring from a Sydney jewellery retailer after representing that he would deposit a cheque for that amount into the retailer's bank account. No cheque was ever deposited, and the ring was pawned the same day.
The Crown's case included evidence that the appellant had previously presented a bundle of Nicaraguan Cordoba banknotes as a substantial deposit on other jewellery to be manufactured, when in fact those notes were worthless. A Westpac currency verifier gave evidence to that effect. The ring was later recovered after it was purchased by a third party, who happened to bring it to the original jeweller for valuation.
The appellant was sentenced to a minimum term of 16 months, to be served consecutively after the expiry of a prior sentence, with an additional term of 12 months. He appealed against conviction only, representing himself in the appeal, with his wife permitted to address the court on his behalf.
Legal Issues
- Whether the trial was conducted unfairly due to alleged "trial by ambush," inadequate preparation time, and late service of materials by the Crown
- Whether the absence of certain expert evidence or witnesses (including a bank employee and a Crown witness named Skouras) resulted in a miscarriage of justice
- Whether an irregularity concerning a juror who knew the appellant, and who was dismissed after the jury retired, gave rise to a real risk of prejudice
- Whether the trial judge demonstrated actual or perceived bias and improperly interfered with the appellant's preparation and conduct of his defence
- Whether the alleged existence of two separate rings in evidence undermined the conviction
Decision
The Court dismissed each ground of appeal. On the adjournment and trial preparation grounds, the Court found that the history of the proceedings did not support a finding of unfairness. The appellant and his legal representatives had been afforded adequate time and opportunity, and any complaint about late service of materials had not been established as causing material prejudice to the defence.
On the expert evidence grounds, the Court found that the bank employee called by the Crown was a qualified currency verifier and that the trial judge was not obliged to conduct a separate voir dire to establish his expertise. No Nicaraguan government documentation or banking legislation was required to establish the worthlessness of the notes in the circumstances.
Regarding the juror irregularity, the Court accepted that the juror was appropriately dismissed once the connection with the appellant came to light. The Court found no sufficient basis to conclude that other jurors had been influenced by that juror prior to his discharge.
On the bias and interference grounds, the Court found no evidence of actual or perceived bias by the trial judge, nor any improper interference with the appellant's preparation. The remaining grounds, including the contention about two separate rings and the absence of the witness Skouras, were also rejected as without substance.
Orders Made
- Appeal dismissed
Key Takeaways
- A trial judge is not obliged to conduct a voir dire to qualify an expert witness where the witness's credentials are sufficiently established in the course of evidence.
- Where a juror is dismissed after it emerges mid-deliberation that he knew the accused, no miscarriage of justice is necessarily established in the absence of evidence that other jurors were actually influenced before the dismissal.
- Late service of materials during a trial does not automatically constitute a denial of natural justice; an appellant must demonstrate that material prejudice resulted.
- In dismissing the appeal, Greg James J reiterated an earlier observation that entirely unarguable appeals may in future warrant consideration of whether the time spent pending appeal should count toward the sentence served.
- No error was established in the trial judge's refusal to recall a defence witness, as the decision whether to recall a witness lies within the court's discretion.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 178BA (obtaining property by deception; maximum penalty 5 years imprisonment)
Cases:
No cases were cited in the portions of the judgment provided.